Being called for jury service recently has sharpened up this
inquiry into domination. Jury service is at the discretion of the
and since May 2004 in the UK, no one is exempt.
State power is like the weather, always there. We usually meet it through traffic lights, taxation, or speed limits. Jury service brought me face to face with state power in a way analogous to arrest and imprisonment. Report at a time and a place of the state's choosing, go home each day but otherwise remain sequestered from contact with anyone other than other jurors, to which is added, again backed by the force of law, an insistence on complete confidentiality about the whole business of the jury's decision-making.
The force of law. This is what I lived with this last couple of weeks. I was reminded that one of the ways of defining a functional state is that it, or someone, has a monopoly on the use of force. In the UK, however much it may fray round the edges, the state does have such a monopoly, while in Iraq at the time of writing, the 'coalition of the willing' is failing to establish a monopoly of the use of fource, and in these days at the end of 2004, the incumbent monopoly of the Ukraine's state use of force is under severe challenge.
And how come, I ask myself, that nowhere in my education or experience was there the slightest hint of any preparation for what a crown court, or indeed any other court amounts to in practice? Once again it seemed, the invisibility of power. Power weather.
So what did I see during my jury service? The first over-arching impression is of theatre. The frequent arrivals and departures of the jury from the court eventually became more than just analogous to a theatre curtain rising and falling. Each time when we returned, the set and the actors would be there apparently exactly as we'd left them, even though on many occasions they had clearly come into their places entirely for our benefit. A very odd discontinuity, like a videotape on pause being restarted.
In this Court Theatre the jury is audience. Silent. Attentive. The focus of the whole performance. And in a grand, even imperial isolation, with communication, except out of the room between jury discussion, strictly limited to notes given to an usher who passed them to the judge.
As in any play, there was the sharp division of labour between the performers. It featured highly ritualising jousting between counsel and witnesses, with the judge as referee and intermittent authority on what was admissible. And, as could be inferred from palpable tension between the judge and the defence counsel, more jousting was going on behind the scenes, when during the frequent delays, what were described as 'administrative matters' were being discussed. At the back of the judge, framing his authority, hung the royal seal, an huge enameled aluminum casting, with one inscription 'honi soit qui mal y pense' discreetly buried under the heraldic paraphernalia, and the other, perhaps held to be more important to the matters of the day, 'dieu et mon droit', clearly visible. Hmm, I thought, both in French.
And the actors looked like actors in role, the judge be-wigged and ribboned, ushered in with a loud knock by the door that brought the court to it's feet. The counsel, also be-wigged and gowned, ushers gowned in black, much swearing by Almighty God on sacred books to tell the truth, or, as only three people out of perhaps two dozen chose, affirmation of a secular personal authority. There was constant bowing by court staff to the judge, (or was it the royal insignia) as they entered and left the court, Even more curiously, if, as a jury was being 'processed' by an usher back through these seemingly endless corridors of power to its departure hall, a judge inadvertently stepped into the space, the jury had to freeze, while he or she went on their way. Was this British court in some state of arrested development? Frozen in critical ways in some period of royal privilege around the end of the eighteenth or early nineteenth centuries?
After a day or two, I came to value the sense in which this 'theatre' was an accumulation and distillation of centuries of custom and practice, a situation where, much though it grieves me to admit it, tradition has value. This was reinforced by the judge's heartfelt endorsement at one point of the value of trial by jury, which he hoped, quite out of context of the business of the trial, would survive for a hundred years—hinting as I felt, that it might be under threat. And it appeared to work well, the defendant was found guilty on counts that, as it then turned out, matched his 'previous', numerous convictions and many years of imprisonment for similar offences.
So far so good, and it was good. And yet...
I suppose it was a virtue that I came to this trial with no experience of the UK legal system except perhaps newspaper reporting of trials. The trial was considering allegations of rape, assault and false imprisonment, early on, feeling this naivete, I looked up the 2003 Sexual Offences Act on the Internet—and found this account of the 2003 Act and the considerable legal controversy around sexual offences. This Policy paper reports that in the UK only one of 20 reported rapes leads to a conviction and that only 10-20 percent of rapes are reported to the police. The proceedings of the case I was involved in seemed to show only too clearly why this is, and why few women, already likely to be traumatized and knowing what a rape case entails, would want to endure it.
Nonetheless, the Sexual Offences Act 2003 improves how rape cases are dealt with. As of May 2004, a complainant's previous sexual experience is no longer admissible, and in the trial I write about here, the victim support police officers had evidently been very diligent, police facilities included a purpose built suite for medical examination, and the police surgeon and some other expert witnesses in this trial were women. And yet, despite all the apparent and tangible attempts to be scrupulous about evidence and proof, not least the judges exemplary transparency about the law and how it should be interpreted, I felt that, while the trial was fairly conducted, from the complainant's point of view, there was something fundamentally unjust in the way this trial, and I'm supposing others like it, was structured.
The defendant, as a person innocent until proved guilty is entitled to do, made no statement when arrested and charged, and made no statement in court, remaining a blank presence throughout. A face behind the glass screen of the dock. The complainant, having made a long and detailed statement was taken through the key elements of it by the prosecution counsel. The cross examination of her evidence by the defence counsel, (both were women), explored the outer limits of sarcasm, intimidation and character assassination. Maybe this is normality but I was astonished at a style of challenge (challenge being an inescapable ingredient here) that what in any other situation would seem to be clearly abusive, over-determined and counter-productive. The defence counsel's questioning, ostensibly a confrontation of witnesses behaviour, was loaded with attitude, implying, while hiding behind courtspeak, that whatever the answer, the witness was a 'loser', a 'liar', 'a drunk'. The defence counsel continued this style with other female witnesses but notably moderated it when when the several men were giving evidence. From a psychological perspective, such an appeal is a trance induction, that invites the jury to suspend their intellectual discrimination in favour of the emotive 'suggestion' being proposed.
Here was where I began to get the sense of there being some bias, a lean in how rape is dealt with. For all it's high quality as an event and the justice of the outcome, I felt it was seriously deficient. But how and where?
Early one morning I woke up unnacountably furious. Reflecting on why I felt so angry led me to see that, while albeit subtly nuanced and polished smooth with the countless repetitions and challenges and reforms of the UK's legal history, the court process I was inhabiting was yet another culture of domination. Male domination. The attack and defense adversarial trial system amount to warfare, with it's own Geneva Conventions and with rules of engagement of how combatants must be treated. Even if conducted by women who had joined it, this was male fighting culture resembling surprising closely a boxing match with rounds, and a referee who would more often than not be male, only 15% of judges in the UK are women, more. And if I am correct that courts are a culture of male domination, a form of ritualized warfare, why would women be enthusiastic about becoming judges?
Part of my anger was at realizing the extent to which even the fairness and justice of the courts is yet another dominant elite story told with the intention of justifying and sustaining the existing distribution of power. Be a poor person struggling to survive in an impoverished neighbourhood, who had suffered substantial personal loss, a child abducted, having to put down an elderly dog, with a lodger who appeared to have killed or injured pets, and it is immediately obvious that your story is a subordinate story, not an elite story. Which means that it attracts derision and disbelief from people who belong, or subscribe to elite stories of dominance. It means that you are a liar, not just perhaps being from time to time, understandably, defensively, evasive. For more on the elite and subordinate stories of cultures of domination I again recommend James C. Scott's Domination and the Arts of Resistance: Hidden Transcripts.
The elite storytellers in court were clearly identifiable, the expert witnesses listed their 'qualifications' and some even listed their publications, the counsel and judge wore wigs, anyone else was a listener, a member of the public, or the jury, or a functionary, ushers or court clerk. The other people with subordinate stories, were also clearly identifiable; the policewomen who packed and wrapped evidence and got critical aspects of it wrong; the police support officer who persisted in staying in contact with the complainant. There were routinely, as it seemed to me, abused by the hostile aggressive tone of the defence counsel.
The adversarial system seems to be a win/lose warfare, a contest that denies negotiation of the truth, People swear by Almighty Gods of one kind or another to tell the truth, the whole truth, and nothing but the truth, setting out right at the beginning the notion of absolute truth. But as any psychotherapist or high energy physicist knows, the truth is highly fluid and seeking to establish it is more akin, as Lakoff, and Heisenberg have demonstrated, to navigation through an ocean of metaphor. Because contrary to archaic folk theories about truth built on such notions as 'facts' and 'objectivity', truth is not susceptible to disconnection from human embodiment. Bodies don't lie, though people may.
And here maybe is where the UK court system and others too I guess are in another time warp, at least than me. Because to think of facts as immutable, fixed, settled, to assert absolute, literal truths, is to be inhabiting a pre-modern, pre-psychological, pre-Lakoffian take on what counts as evidence. Juries on the one hand are charged with weighing embodied imponderables, taking into account 'the whole of the circumstances' as the judge more than once reminded the jury, but the court process was wholly concerned with what counts as a 'fact', with 'evidence', with the fruits of intellect, with what what logically proves or disproves something.
In this Crown Court discourse that I lived with for ten days, the clear repeated bias of the stories told was in favour of deploying argument, inference and logical analysis to tell an overwhelmingly male elite story—the truth is what is intellectually and/or scientifically demonstrable. Embodied truth—emotionality due to life events, ie the extent and effects of shock, distress and damage due to the alleged injuries; 'presence', the ability to remain coherent and available as a person through hours of very intimate storytelling and cross examination—all this was persistently discounted. The victim support police officer was repeatedly alleged by the defence of having become 'emotionally attached' to the complainant, of unprofessional behaviour—as though support could be delivered without empathy.
And yet while the emotionality of the subordinate story-tellers was discounted, or in the case of the complainant openly derided, throughout the seven days of this trial, the defence counsel used emotionally charged language and tone of voice almost every time she opened her mouth. A representative example of her defence counsel style that sticks in my mind, was describing at one point the complainants underwear, an uncontroversial exhibit, as 'her tatty knickers'. Unending strings of closed questions loaded with negative inference strikingly resembled artillery salvos. They didn't seek to establish truth, their intention appeared to be inflict damage. Under the court's 'rules of engagement', i.e. that returning fire was not allowed, they had the effect of suppressing discussion, 'outlawing' any negotiation of the truth that was being tested. And so sustaining the dominant elite/subordination power relations.
My waking feeling of anger subsided into disappointment and sadness as I realized that here again was a culture of domination that discriminates in favour of the privileged, the powerful, the articulate, and the qualified, and against the sad, the poor, the distressed, and people of modest financial and social resources. And that it has sunk into relative social invisibility.
I guess people have been saying this for decades, if not centuries, and while the excesses of the past have been remedied, it is still not right. In fairness I acknowledge that, when in this case, the judge, along with the rest of us found the complainant, terrified and shaking in the witness box entirely inaudible, he organized for her evidence to heard via video link. The shift in the balance of power was very dramatic, without this rebalancing of the power relations, I felt the court was in real danger of re-traumatizing the complainant in the interests of justice. A structural change, building on other recent changes to the law, many of them, as the policy studies article I cited earlier outlines, the result of decades of feminist campaigning.
In conclusion: for all it's subtlety and checks and balances, in this trial I feel I was a involved in a form of warfare. We were participants in a court tradition that seems not that far from the jousting of knights, the commonplace ritual violence of the 14th century European aristocratic courts. We were living in a territory, a culture of domination, where as with other warfare, the emotional, the embodied weight of injury, shock and traumatization are discounted, left off-stage, because in the win/lose adversarial paradigm the court was locked into, they can't readily be reduced to facts. And also if you suffer from such 'weakness', for the elite story-tellers, whatever your standing, this colours you in as having a subordinate, 'loser' story.